Post Economics

Apple epitomizes the future we’re choosing by way of treating knowledge as property: gross inequality and hierarchical control, but amazing, such that it is hard to imagine a different arrangement. (I argue very different arrangements concerning knowledge are possible and some would produce much better outcomes — freedom and equality — and some would produce much worse, but still be considered amazing, as they would be relative to the past — knowledge policy is a point of incredible leverage in either direction.)

I don’t watch Apple closely at all, but occasionally a headline catches my eye, as two have recently.

Android share of smartphone profits plummets to 11 percent. 89% of smartphone profits go to Apple, despite shipping only 19.7% of smartphones. Of course there are other contributing factors, but these numbers suggest to me something about the surplus obtained by producers and consumers in the case of proprietary (iOS) and open source (Android) operating systems, and the resulting concentration of wealth toward owners of the former.

Apple Is Now More Than Double the Size of Exxon—And Everyone Else. That’s by market capitalization, around $750 billion. As the article notes, IBM in 1983-1985 had more than double the market cap of any other company. Knowledge as property driven wealth concentration is not at all new, but I suspect it is increasing as knowledge becomes unambiguously the commanding heights and we shift from an industrial to a knowledge economy (transition captured in pithy phrases such as “data is the new oil” and “software is eating the world”) and knowledge is increasingly subject to various freedom infringing (intellectual property) regimes, and I suspect that more people are recognizing this.

Is the “inequality” issue a cover for something else? Quote: “Lots of the growing inequality is due to the winner-take-all nature of the modern economy, where marginal costs are extremely low and markets are protected by intellectual property laws. Huge profits go to the knowledge-based industries, and the financiers who finance them.”

Now these two are largely making stereotypical contemporary political points for or against state activity respectively (the latter by proxy of claiming Democrats don’t really care about inequality) and not demanding a fundamental shift away from property as the regime governing knowledge (the former demands a ‘golden share’ of intellectual property derived profits for the state). But I’d be very happy to see both “sides” embrace such a shift. Demanding that government and government-funded knowledge not be treated as property is a good start.

Linux kernel developer Christoph Hellwig today filed a lawsuit against VMware (NYSE:VMW; US$36 billion market cap) due to their long time refusal to observe the terms of the GPL when incorporating code by Hellwig into their kernel, which remains proprietary. If VMware observed the GPL’s terms, their kernel including all source would be released under the GPL. This is a significant case, in part due to the rarity of GPL enforcement lawsuits. Details on the website of Software Freedom Conservancy, which is coordinating and funding (you can help) this action.

If the GPL is rarely enforced, its differentiation from non-copyleft licenses such as MIT, BSD, and Apache is muted. Why should you support license differentiation and thus GPL enforcement?

You think copyleft is a wonderful hack, a productive and even necessary strategy for protecting and expanding the software commons. No enforcement makes the hack buggy: rarely executing and easily circumvented. So of course you want enforcement.

You think copyleft curtails freedom, and ironically hampers the software commons — intractable incompatibility means software can’t be freely mixed, and the attempt to prevent capture by proprietary software interests only abets capture of the field by intellectual parasite lawyer interests. Your efforts to persuade developers and companies that they should avoid GPL software at all costs (up to reimplementation) in preference to permissive and public domain instruments can only be enhanced by prominent GPL enforcement by lawsuit.

You think copyleft is great for software business, as one can acquire users by offering GPL software, then acquire customers by shaking down users who could conceivably not be observing the GPL to the letter. Public GPL enforcement makes your salespeople more compelling.

Among people who have any opinion about copyleft, I’m pretty sure there are very few who accept more than one of the above thoughts. I enjoy all three (the third looks like a sin tax to me). My point here is that people who completely disagree on the purpose and efficacy of copyleft ought all be excited and supportive of copyleft enforcement. But there are additional, less commonly discussed reasons:

You think strong copyleft encourages more people to release free software, people who would not be comfortable with releasing under a non-copyleft license, whether because they fear piracyproprietarization more than obscurity (some overlap with 1 above), or because they want to make wealthy entities pay (lots of overlap with 3 above). Strong copyleft serves as the NonCommercial of the software world (without being fundamentally broken like NC, though the most radical believers in 2 above might disagree) in that it increases the range of licensing options to meet the preferences of both those who fear exploitation by business, and those who want to exploit business. Strong copyleft isn’t so strong without enforcement, so anyone who understands the value of this differentiation should want it to be strengthened by enforcement actions.

You think copyleft-for-x is needed for some non-software field (or hear such thoughts expressed; e.g., for seeds or hardware designs, even real property), but the details of how copyleft works are a bit fuzzy. Enforcement by lawsuit is where the rubber meets the road, so you should enjoy the demystification provided by such actions and support them. Also, successful copyleft enforcement will stoke more people to have desires for copyleft-for-x, thus increasing your community of people intent on figuring out the “for-x” part.

You think copyleft is most usefully considered as a prototype for and test of rules that ought be enforced by more effective regulatory mechanisms. Whether you think software provided without source and permissions should be totally banned, not regulated at all, or only regulated for particular uses or in particular fields (e.g., products and services already subject to other safety, disclosure, and pro-competition or consumer protection requirements), it is absurd to think that developer whim and resources in applying and enforcing the GPL regulates and regulates effectively an optimal set of software. It is time to move beyond debate of a hack of state-deputized private censorship as central to software freedom politics and policy, and on to debating directly state vs. market regulation of software (with all the usual arguments about (in)adequacy of market provision and harm/help of state intervention) as in any field of importance, preferably with very strong commons-favoring bias from both sides (e.g., software freedom market-skeptics and state-skeptics ought agree that regulation by private censorship, which serves proprietary interests almost exclusively, be wound down, and that state entities self-regulate by mandating software freedom for everything they acquire and fund). Unenforced copyleft means the rules prototyped are untested, reducing salience of the prototype, so you also should enjoy GPL enforcement actions.

I enjoy these latter 3 reasons especially, perhaps especially because few other people seem to (I’m eager to be or become wrong about this).

Go help Software Freedom Conservancy support Hellwig’s enforcement against VMware, or tell me why I’m wrong. Note I’m on Software Freedom Conservancy’s board and endorse all of their work, but as usual, this blog post represents only my opinion. Of the reasons to support enforcement above, they’d agree with 1; probably find 2 and 3 and maybe 4 objectionable; 5 and 6 perhaps curious but distant from work in today’s trenches. Again, my point is that many more people than those who agree with 1 (copyleft for good), even those who totally disagree with 1, should enjoy and support GPL enforcement.

The lawsuit will probably be heavily covered in the technology press, but you can read some early discussions now at LWN.net, Hacker News, and reddit. You can also read about copyleft in general at copyleft.org (another Software Freedom Conservancy project; my take).

commons ⇄ freedom, equality ⇄ good future

Same as last year, my main topic has been “protecting and promoting intellectual freedom, in particular through the mechanisms of free/open/knowledge commons movements, and in reframing information and innovation policy with freedom and equality outcomes as top.”

Rather than repeating the three doubts I expressed last year under the heading “intellectual freedom” (my evaluation of these has not much changed), I will take the subject from a different angle: the “theory of change” I have been espousing. This theory is not new to me. Essentially it is what attracted me to following the free software movement circa 1990 — its potential of extensive, pro-freedom socio-economic reform from the bottom up. That and wanting to run a unix-like on my computer — a want satisfied without respect to freedom as soon as I could use a Sun workstation at work, and for many years now would have been satisfied by OS X. I never cared very much about being able to read, modify, and share all of the software on my computer — the socio-economic implications of those capabilities make them interesting, to me. The claimed ends of the theory are in the ‘for a good future’ slogan I’ve occasionally used at least since 1998. I occasionally included the theory in blog posts (2006) and presentations (2008). Much of my ‘critical cheering’ last year (doubt) and before has largely been about my perhaps unreasonable wish that ‘free/open’ organizations and movements would take the theory I do and act as I think follows. I could easily be wrong on the theory or best actions it implies. Accordingly, I ratcheted down critical cheering in 2014; hopefully most but not all of what remained was relatively fun or novel. Instead I focused more sharply on the theory, e.g., in Sleepwalking past Freedom’s Commons, or how peer production could increase democracy, equality, freedom, and innovation, all of them!

The theory could be attacked from a number of angles — I’d love to see that done and learn of new vulnerabilities. For example, commons might not significantly affect freedom and equality, these may not be the right values, and one might consider a ‘good future’ to be one with maximum hierarchy, spectacle, even war (I repeatedly argue that future tech and culture will be marvels in most plausible futures, and that is a reason to reject ones that do not have freedom and equality as top values, but also something that makes it hard to see how a future — or present — could be different or better with more knowledge economy/policy-driven freedom and equality). But this isn’t a cheap refutation post (see below) and I don’t have very practical doubts about those values and what they imply constitutes a good future.

But I do have practical doubts about the first leg of the theory. Summary of that leg before getting to doubts: Commons-based knowledge production simultaneously destroys rents dependent on freedom infringing regimes, diminishing the constituency for those regimes, grows the constituency and policy imagination for freedom respecting regimes, and not least, directly increases freedom and equality.

Doubts:

Effects could be too small to matter, or properly attributed to generational or other competition among firms, not commons-based production. Consider Wikipedia, a success of commons-based production if there is one. Such success may not be possible in other sectors, especially ones that command top policy attention (drugs and movies) — policy imagination has not been increased. The traditional encyclopedia industry was already mostly destroyed by Microsoft Encarta when Wikipedia came along. The encyclopedia industry was not a significant constituency for freedom infringing regimes, so its destruction matters not for future policy. Encyclopedias were readily accessible at libraries, vastly more useful info of the sort found in encyclopedias is accessible online now, excluding Wikipedia, and ‘freedoms’ to modify and distribute are just not relevant nearly all humans.

I claim that the best knowledge policy reform is that which favors commons and that the reforms traditionally proposed by copyright and patent reformers are relatively futile because such proposals if implemented would not significantly change the knowledge economy to produce freedom and equality nor grow the constituencies for such changes — rather they are just about who, how, and for how much the outputs of production under freedom infringing regimes may be used — so-called balance, not the tilt I demand. But perhaps the usual set of reform proposals is the best that can be hoped for, especially given decades of discourse and organization-building around those proposals, and almost none about commons-favoring reform. Further, perhaps the usual set of reform proposals is best without qualification — commons-based production is a culturally marginal (in software; wholly irrelevant in most other sectors) arrangement that ought be totally ignored by policy.

Various (sometimes semi-) free/open movements within various sectors (e.g., software, education, research publication) are having some policy successes, without (as far as I know) usually considering themselves to be as or more central to shaping knowledge policy as usual things fitting under ‘copyright reform’ and ‘patent reform’ but this could be just what needs to happen. The important thing is that commons-based knowledge production entities act to further their interests with minimal distance from current policy discourse, not that they have any distracting and possibly discrediting theory about doing so relative to overall knowledge policy.

Only the first of these gives me serious pause, though my discounting the last two might be a matter of (dis)taste — my feeling is that most of the people involved thoroughly identify with the trivia of copyright, patent, and similar law, even if they think those laws need serious reform, and act as if commons-based production is something to be protected from reform in the bad direction, but not at all central. Sadly if my feeling is accurate, the second and third doubts probably ought give me more pause than they do.

Despite these doubts, the potential huge win-win (freedom and equality, without conflict) of reorienting the knowledge economy and policy around commons-based production makes robust discourse (at the least) on this possibility urgent, even if tilt probability is low. One of the things that makes me favor this approach is that reform can be very incremental — indeed, it is by far the most feasible reform of any proposed — we just need a lot more of it. Push-roll towards tilt!

The most damning observation is perhaps that I’m only talking, and mostly on this very blog. I should change my ways, but again, this is not a cheap refutation post.

Software Freedom/Futurism/Science Fantasy

I recently wrote that “it’s much easier to take software freedom as a serious issue of top importance if one has a ‘futurist’ bent. This will also figure in a forthcoming post from me casting doubt on everything in this post and the rest from 2014.”

How important are computers to human arrangements, and how large is the range of plausible computer-involved arrangements, and how much can those realized be changed? Should anyone besides programmers and enthusiasts care about software specifically, any more or less than they care about the conditions under which any tool is created and distributed? (Contrast with other tools would be good here, but I’ll leave for another time.)

The vast majority of people seem to treat software as any other tool — they want it to work as well as possible, and to be as cheap as possible, the only difference being that their intuitions about quality and cost of software may be worse than their intuitions for the quality and cost of, for example, bridges. Arguably nearly everyone has been and perhaps still is correct.

But one doesn’t need to be much of a futurist to see software getting much more important — organizations good at using software ‘eating’ the lunches of those less good at using software, software embedded in everything or designing everything (and anything else being obsolete), regulating and mediating every sort of arrangement — with lots of plausible variation as to how this happens.

Now the doubt: does future-motivated interest in software freedom share more with interest in science fiction (i.e., moralistic fantasy) or with interest in future studies and the many parts of various social sciences that aim to improve systems going forward in addition to understanding current and past ones? If the latter, why is software freedom ignored by all of these fields? Possibly most people who do think software is becoming very important are not convinced that software freedom is an important dimension to consider. If so (I would love to see some kind of a review on the matter) it would be most reasonable to follow the academic consensus (even if it is one of omission; that consensus being of software freedom not interesting or important enough to investigate) and if one cares about the ethical dimensions of software, focus instead on the ones the consensus says are important.

Two additionalposts last year in which I claim software freedom is of outsized and underappreciated importance (of course I don’t usually restrict myself to only software, but consider software a large and growing part of knowledge embodying cumulative innovation, and of the knowledge economy leading to more such accumulation) and some of many from years past (2006, 2006, 2007, 2007). The first from 2006 highlights the most obvious problem with the future. I had forgotten about that post when mentioning displacement of movies by some other form as the height of culture in 2013 — one has to squint to see such displacement even beginning yet. The second isn’t about the future but is closely related: alternative history.

Uncritical Cheering

I feared that many of my posts last year were uncritical cheering (see critical cheering above and last year). Looking back at posts where I’m promoting something, I have usually included or at least hinted at some amount of criticism (e.g., 12). I don’t feel too bad. But know that most of the things I promote on my blog are very likely to fail or otherwise be inconsequential — if they were sufficiently mainstream and established they’d be sufficiently covered elsewhere, and I likely wouldn’t bother blogging about them.

One followup: I cheered the publication of the first formally peer-reviewed and edited Wikipedia article in Open Medicine — a journal which has since ceased publishing.

Freeway 980

I continue to blogabout removing freeway 980, which cuts through the oldest parts of Oakland. Doubt: I don’t know whether full removal would be better (at least when considering feasibility) than capping the portion of 980 which is below grade. I intended to read about freeway capping, come to some informed opinion, and blog about it. I have not, but supposedly Oakland mayor Libby Schaaf has mentioned removing 980. Hopefully that will spur much more qualified people to publish analyses of various options for my reading pleasure. ConnectOakland is a website dedicated to one removal/fill scenario.

Politics

I’m satisfied enough with the doubt in my twoposts about Mozilla’s leadership debacle, but I’ll note apparent tension between fostering ideological diversity and shunning people who would deny some people basic freedoms. I don’t think this one was fairly clear cut, but there are doubtless far more difficult cases in the world.

Refutation

I fell further behind, producing no new dedicated collections of refutations of my 8+ year old posts. My very next post will be one, but as with previous such posts, the refutations will be cheap — flippant rather than drilling down on doubts I may have gained over the years. Again these observations (late, cheap) are what led me last year to initiate a thematic doubt post covering the immediately previous year. How was this one?

Following is largely an update of my letter to Jean Quan four years ago. Big differences: I voted for you, and both my and general expectations for your term are high.

Crime and policing are still where Oakland does worst relative to other cities, and where it can improve the most through action by city government. (It’s easy to make the case other problems are bigger, e.g., poverty, infrastructure, housing, finances, education, corruption…but many cities are worse off than Oakland on multiple of these, there’s less any city government can do on its own to turn these around, and few if any cities have staged big turnarounds in these areas…but many cities have on crime and policing.)

In order to avoid a strong challenge from the left during your term and in the next election, you must prioritize policing quality (both in terms of solving crimes and zero tolerance for cops who commit crimes and their supervisors) above quantity of cops. In order to avoid a strong challenge from the right, crime must go down. I suspect these two necessities are compatible, and suspect you might think so too (or I wouldn’t have voted for you). But now you have to act.

A sure signal of failure to me will be if you blame criminals, drugs, federal oversight, guns, or protesters — these elements are not under your control — and the best way to address them is — fix the OPD. Nearby and substantially poorer Richmond seems to be setting a fine example. If chief Sean Whent isn’t up to the job of fixing the OPD (I hope he is), how about hiring Richmond police chief Chris Magnus? On addressing protesters, Oakland could even take a lesson from Nashville, which as far as I know has vastly less experience with large protests.

I suspect that short-term city finances do not look as bad as they did four years ago due to the regional economy, but long-term (or even next recession) they are dire. I have very low expectation of any substantial improvement in long-term outlook, but good decisions on development and transportation would help. In general the Strong Towns approach favoring narrow streets and incremental, financially sustainable development over big roads and heavily subsidized big begs seems applicable to infill development, even though that site’s main target seems to be jurisdictions still doing green field development. Don’t bet on retail or sports teams. Do eliminate gratis parking, remove 980, and otherwise prepare Oakland to exploit rather than be exploited by the great urban reconfiguration of the 21st century — self-driving vehicles (LA’s mayor is at least talking about this).

On the city council you’ve been the internal champion for transparency and open government. Please continue on that path, rather than pivoting away from real open government, as some do when they move to the executive. Even better would be to make Oakland city government a leader in open source software procurement. Cities are terribly ill-coordinated on software procurement and development, which presently makes them subject to vendor lock-in and high costs, but as more infrastructure is mediated by software, will make their citizens less free.

Finally, do everything in your power and more to welcome, protect, and empower non-U.S. citizen residents, visitors, and workers in Oakland, and to frustrate the institutions of international apartheid and inflame their apologists, from the purely practical such as running the city well (as Jane Jacobs pointed out long ago, working cities are where strangers add to rather than threaten each other’s lives) to the largely expressive such as encouraging non-citizens to vote.

Here’s to great outcomes for Oakland, and your incredible success as mayor!

Most of what I wrote previously about the DPL concept still applies with DPL 1.1 (interesting concept, possibility of substantial good impact in long term). The new version makes one major improvement (especially in relation to FLOSS) — the exclusion of “clone” products or services from the license grant has been removed. Another small (as in a -3 words difference) improvement is that alleging patent invalidity against another DPL user no longer breaches one’s licenses (only alleging infringement does), invalidation being a defensive tactic.

DPL 1.1 also adds the requirement of explicit acceptance, which strikes me as burdensome: one must research licensed patents in order to figure out which DPL users to contact with acceptance, or regularly contact all known DPL users with acceptance of all licensed patents. I understand from the DPL 1.1 announcement telecon that formal acceptance was added because the license grant is more likely to stand up in court with such explicit acceptance, with that more likely assessment based on differences between patent and copyright, and between clubs and public licenses — and further that the “contact all known DPL users” practice will in the future be facilitated by the DPL website.

Finally, a very minor issue: DPL 1.1 reproduces the GPL’s confusing three-option version compatibility scheme (this-version-or-later, only-this-version, or any-version-if-none-specified). If one must have options, I consider less confusing this-version-or-later as default, with option to explicitly mandate only-this-version.

Congratulations and thanks to Jason Schultz, Jennifer Urban, Brewster Kahle, John Gilmore, and others for getting the DPL into production. I hope it is wildly successful; check out the DPL website and help update the Wikipedia article.

Following is a wdiff between DPL 1.0 and 1.1 in two parts (because 1.0 put definitions at the beginning, 1.1 puts them at the end) below, excluding 1.1’s preface, which has no equivalent in 1.0.

DPL 1.0-1.1 wdiff: Grant, conditions, etc.

[-2.-]{+1.+} License Grant
Subject to the conditions and limitations of this [-License and upon-][-affirmative assent to the commitments specified in Section 1.7 from an-][-individual DPL User,-]{+License,+} Licensor hereby
grants and agrees to grant to [-such-]{+any+} DPL User {+(as defined in Section 7.6) who+}{+follows the procedures for License Acceptance (as defined in Section 1.1)+}
a worldwide, royalty-free, no-charge, non-exclusive, irrevocable (except
as stated in Sections [-3(e)-]{+2(e)+} and [-3(f))-]{+2(f))+} license, perpetual for the term of
the relevant Licensed Patents, to make, have made, use, sell, offer for
sale, import, and distribute Licensed Products and Services that would
otherwise infringe any claim of Licensed Patents. A Licensee’s sale
of Licensed Products and Services pursuant to this agreement exhausts
the Licensor’s ability to assert infringement [-by-]{+against+} a downstream
purchaser or user of the Licensed Products or Services.
[-2.1-]{+Licensor’s+}{+obligation to grant Licenses under this provision ceases upon the arrival+}{+of any applicable Discontinuation Date, unless that Date is followed by+}{+a subsequent Offering Announcement.+}
{++}
{+1.1+} License Acceptance
In order to accept this License, Licensee must {+qualify as a DPL User+}{+(as defined in Section 7.6) and must+} contact Licensor via the
[-contact-] information
provided in [-Section 1.16 and-]{+Licensor’s Offering Announcement to+} state affirmatively that
Licensee accepts the terms of this License. Licensee must also {+communicate+}{+the URL of its own Offering Announcement (as defined in Section 7.13) and+}
specify whether it is accepting the License to all Licensor’s Patents or
only a subset of those Patents. If Licensee is only accepting the License
to a subset of Licensor’s Patents, Licensee must specify each individual
{+Patent’s country of issuance and corresponding+} patent [-by patent number.-]
[--]
[-3.-]{+number for which+}{+it is accepting a License. There is no requirement that the Licensor+}{+respond to the Licensee’s affirmative acceptance of this License.+}
{++}
{+2.+} License Restrictions
Notwithstanding the foregoing, this License is expressly subject to and
limited by the following restrictions:
(a) No Sublicensing. This License does not include the right to sublicense
any Licensed Patent of any Licensor.
(b) License Extends Solely to Licensed Patents in Connection with Licensed
Products and Services. For clarity, this License does not purport to
grant any rights in any Licensor’s copyright, trademark, trade dress,
design, trade secret, other intellectual property, or any other rights of
Licensor other than the rights to Licensed Patents granted in Section 2,
nor does the License cover products or services other than the Licensed
Products and Services. {+For example, this License would not apply to+}{+any conduct of a Licensee that occurred prior to accepting this License+}{+under Section 1.1.+}
(c) Scope. This License does not include Patents with a priority date
or Effective Filing Date later than Licensor’s last Discontinuation
Date that has not been followed by a subsequent Offering Announcement
by Licensor.
(d) Future DPL Users. This License does not extend to any DPL User whose
Offering Announcement occurs later than Licensor’s last Discontinuation
Date that has not been followed by a subsequent Offering Announcement
by Licensor.
(e) Revocation and Termination Rights. Licensor reserves the right to
revoke and/or terminate this License with respect to a particular Licensee [-if:-]{+if, after the date of the Licensee’s most recent Offering Announcement:+}
{++}
{+i.+} Licensee makes any Infringement Claim, not including Defensive Patent
Claims, against a DPL User; or
{+ii.+} Licensee {+assigns, transfers, or+} grants an exclusive [-license,-][- with the right to sue, or assigns or transfers-]{+license for+}
a Patent to an entity or individual other than a DPL User without
conditioning the [-transfer-]{+assignment, transfer, or exclusive license+} on the [-transferee-]{+recipient+} continuing to abide by the terms of this [-License.-]{+License, including but+}{+not limited to the revocation and termination rights under this Section.+}
(f) Optional Conversion to FRAND Upon Discontinuation. [-As-]{+Notwithstanding+}{+any other provision in this License, as+} of any particular Licensee’s
Discontinuation Date, Licensor has the right to convert the License of
that particular Licensee from one that is royalty-free and no-charge to
one that is subject to Fair, Reasonable, And Non-Discriminatory (FRAND) [-terms.-]
[--]
[-4.-]{+terms going forward. No other terms in the license may be altered in+}{+any way under this provision.+}
{++}
{+3.+} Versions of the License
[-4.1-]{+(a)+} New Versions
The DPL [-Foundation is-]{+Foundation, Jason M. Schultz of New York University, and Jennifer+}{+M. Urban of the University of California at Berkeley are+} the license [-steward. No-]{+stewards. Unless otherwise designated by one of the license stewards,+}{+no+} one other than the license [-steward-]{+stewards+} has the right to modify or publish
new versions of this License. Each version will be given a distinguishing
version number.
[-4.2-]{+(b)+} Effect of New {+or Revised+} Versions
[-Licensed Products and Services-]{+Any one of the license stewards+} may {+publish revised and/or new versions+}{+of the DPL from time to time. Such new versions will+} be [-used, made, sold, offered for sale,-][-imported, or distributed under-]{+similar in spirit+}{+to+} the [-terms-]{+present version, but may differ in detail to address new problems+}{+or concerns.+}
{++}
{+Each version is given a distinguishing version number. If Licensor+}{+specifies in her Offering Announcement that she is offering a certain+}{+numbered version+} of the [-version-]{+DPL “or any later version”, Licensee+}{+has the option+} of {+following+} the [-License-][-originally accepted pursuant to Section 2.1,-]{+terms and conditions either of that+}{+numbered version+} or [-under-]{+of any later version published by one of+} the [-terms-]{+license+}{+stewards. If Licensor does not specify a version number+} of {+the DPL in+}{+her Offering Announcement, Licensee may choose+} any
[-subsequent-] version {+ever+} published
by {+any of+} the license [-steward.-]
[--]
[-5.-]{+stewards.+}
{++}
{+4.+} Disclaimer of Claims Related to Patent Validity and [-Noninfringement.-]{+Noninfringement+}
Licensor makes no representations and disclaims any and all warranties
as to the validity of the Licensed Patents or [-that-]{+the+} products or processes
covered by Licensed Patents do not infringe the patent, copyright,
trademark, trade secret, or other intellectual property rights of any
other party.
[-6.-]{+5.+} Disclaimer of [-Warranties.-]{+Warranties+}
UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING,
LICENSOR OFFERS THE PATENT LICENSE GRANTED HEREIN “AS IS” AND
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE
LICENSED PATENTS OR ANY PRODUCT EMBODYING ANY LICENSED PATENT, EXPRESS
OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF TITLE, [-MERCHANTIBILITY,-]{+MERCHANTABILITY,+} FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT, OR THE PRESENCE OR ABSENCE OF ERRORS, REGARDLESS OF THEIR
DISCOVERABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, IN WHICH CASE SUCH EXCLUSION MAY NOT APPLY TO LICENSEE.
[-7.-]{+6.+} Limitation of [-Liability.-]{+Liability+}
LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO
THIS LICENSE, INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
SPECIAL DAMAGES, WHETHER ON WARRANTY, CONTRACT, NEGLIGENCE, OR OTHERWISE,
EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
PRIOR TO SUCH AN OCCURRENCE.

DPL 1.0-1.1 wdiff: Definitions

[-1.-]{+7.+} Definitions
[-1.1-]{+7.1+} “Affiliate” means a corporation, partnership, or other entity in
which the Licensor or Licensee possesses more than fifty percent (50%) of
the ownership interest, representing the right to make the decisions for
such corporation, partnership or other entity which is now or hereafter,
owned or controlled, directly or indirectly, by Licensor or Licensee.
[-1.2 “Clone Products or Services” means products or services of-][-Licensee that include the same or substantially identical functionality of-][-all or a commercially substantial portion of a prior released product or-][-service of a Licensor and implement the same or a substantially identical-][-proprietary user interface of the prior product or service.-]
[--]
[-1.3-]{+7.2+} “Defensive Patent Claim” means an Infringement Claim against a
DPL User made in response to a pending prior Infringement Claim by said
DPL User against the asserter of the Defensive Patent Claim.
[-1.4-]{+7.3+} “Discontinuation Announcement” means a DPL User’s announcement
that:
{+(a)+} declares the DPL User’s intent to discontinue offering to license
its Licensed Patents under the DPL, effective as of the Discontinuation
Date; and
{+(b)+} contains the DPL [-User's-]{+User’s+} contact information for licensing purposes;
and [-is submitted to the DPL-][- Website via the Websites's official email address-]{+(c)+} at least 180 days prior to [-a-]{+the+} Discontinuation [-Date;-]{+Date is posted to a+}{+publicly accessible website;+} and
{+(d)+} at least 180 days prior to the Discontinuation Date is [-posted to a publicly accessible-][- indexed-]{+communicated+}{+reasonably and promptly, along with the URL of the+} website [-controlled-]{+mentioned in+}{+subsection (c) of this provision,+} by the {+discontinuing+} DPL User [-using a URL accessible-][- via at least the following syntax: "http://www.NAME.com/DPL" or-][- "http://www.NAME.com/defensivepatentlicense" where "NAME" is-]{+to every+}{+Licensor of+} a [-name-][- commonly associated with-]{+Patent to which+} the {+discontinuing+} DPL [-user, such as-]{+User is+} a [-company name.-]
[--]
[-1.5-]{+Licensee.+}
{++}
{+7.4+} “Discontinuation Date” means the date a DPL User specifies in
[-their-]{+its+} Discontinuation Announcement to discontinue offering to license its
Licensed Patents under the DPL, which must be at least 180 days after
the date of an individual or entity’s most recent Discontinuation
Announcement.
[-1.6-]{+7.5+} “DPL” and “License” mean the grant, conditions, and
limitations herein.
[-1.7-]{+7.6+} “DPL User” means an entity or individual that:
{+(a)+} has committed to offer a license to each of its Patents under the [-DPL, or, if such entity or individual has no Patents, has-][- committed to offer a license to any Patents it may obtain in the-][- future under the-]
DPL; and
{+(b)+} has declared such commitment by means of an Offering Announcement; and
{+(c)+} if the entity or individual has made a Discontinuation Announcement,
the Discontinuation Date has not yet occurred; and
{+(d)+} has not engaged in the conduct described in either Sections [-3(e)(i)-]{+2(e)(i)+}
or [-3(e)(ii).-]
[--]
[-1.8 “DPL Website” means the website-][-at http://www.defensivepatentlicense.org,-][-http://www.defensivepatentlicense.com, or any future site designated by-][-the DPL Foundation.-]
[--]
[-1.9-]{+2(e)(ii).+}
{++}
{+7.7+} “Effective Filing Date” is the effective filing date determined
by the applicable patent office that issued the relevant Licensed Patent.
[-1.10 “Foundry Services or Products” means services provided by-][-Licensee to, or products manufactured by Licensee for or on behalf of,-][-a specific third party, using designs or specifications received in-][-a substantially completed form from that third party, for resale or-][-relicense to or on behalf of that third party. This definition will not-][-apply when:-]
[--]
[- Licensee or its Affiliate owns the design or specification of such-][- service or product and the service or product is not specifically-][- designed for commercial exploitation substantially only by such third-][- party; or such design or specification resulted from a bona fide joint-][- development or joint participation between Licensee or its Affiliate-][- and such third party, including but not limited to a standards body-][- or community organization and the resulting products, services or-][- components provided by Licensee or its Affiliate meet the definition-][- of Licensed Services Product or Products as set forth herein; or-][- the third party recipient of the products or services is a DPL User.-]
[--]
[-1.11-]{+7.8+} “Infringement Claim” means any legal action, proceeding or
procedure for the resolution of a controversy in any jurisdiction in
the world, whether created by a claim, counterclaim, or cross-claim,
alleging patent [-infringement or patent invalidity.-]{+infringement.+} Such actions, proceedings, or procedures
shall include, but not be limited to, lawsuits brought in state or
federal court, binding arbitrations, and administrative actions such as
a proceeding before the International Trade Commission.
[-1.12-]{+7.9+} “Licensed Patents” means any and all Patents (a) owned or
controlled by Licensor; or (b) under which Licensor has the right
to grant licenses without the consent of or payment to a third party
(other than an employee inventor).
[-1.13-]{+7.10+} “Licensed Products and Services” means any products, services
or other activities of a Licensee that practice one or more claims of
one or more Licensed Patents of a [-Licensor, but excluding Foundry Services-][-or Products and Clone Products or Services.-]
[--]
[-1.14-]{+Licensor.+}
{++}
{+7.11+} “Licensee” means any individual, corporation, partnership or
other entity exercising rights granted by the Licensor under this License
including all Affiliates of such entity.
[-1.15-]{+7.12+} “Licensor” means any individual, corporation, partnership or
other entity with the right to grant licenses in Licensed Patents under
this License, including any Affiliates of such entity.
[-1.16-]{+7.13+} “Offering Announcement” means a Licensor’s announcement that:
{+(a)+} declares the Licensor’s commitment to offer a [-license to-]{+Defensive Patent+}{+License for any of+} its Patents
[-under the DPL, or, if such Licensor has no Patents, the commitment to-][- offer a license-] to any [-Patents it may obtain in the future under the-][- DPL;-]{+DPL User;+} and
{+(b)+} contains the Licensor’s contact information for licensing purposes;
and [-is submitted to the DPL Website via the Website’s-][- official email address; and-]{+(c)+} is posted to a publicly accessible
[-indexed website controlled by Licensor using a URL accessible-][- via at least-]{+website.+}
{++}
{+An Offering Announcement may, but is not required to, specify the+}{+particular version of the DPL that+} the [-following syntax: "http://www.NAME.com/DPL" or-][- "http://www.NAME.com/defensivepatentlicense" where "NAME"-]{+Licensor+} is {+committed to+}{+offering. It may also specify+} a [-name-][- commonly associated with Licensor, such as a company name.-]
[--]
[-1.17-]{+particular version of the DPL “or any+}{+later version” to allow Licensees to accept subsequent new or revised+}{+versions of the DPL.+}
{++}
{+7.14+} “Patent” means any right, whether now or later acquired,
under any national or international patent law issued by a governmental
body authorized to issue such rights. For clarity, this definition
includes any rights that may arise in patent applications, utility
models, granted patents, including, but not limited to, continuations,
continuations-in-part, divisionals, provisionals, results of any patent
reexaminations, and reissues, but excluding design patents or design
registrations.

Last week the Free Software Foundation published its annual appeal, which includes the following:

In another 30 years, we believe that we can achieve our goal. We believe that free software can be everywhere, and that proprietary software can go the way of the dinosaur. With the experience we’ve gained, and our community surrounding us, we can win this.

My immediate reaction: I’d love to see the last sentence expanded. How exactly?

Sadly I do not live in a world that laughs at any fundraising appeal lacking an explicit theory of change and only esteems those that one can bet on. At least the FSF has a goal. Perhaps its surrounding community can figure out what it will take to achieve that goal.

Helping “the FSF stay strong for 30 more years” is plainly insufficient, though of course I hope the FSF does stay strong for decades and encourage helping financially. The entire free software movement on its current trajectory is insufficient; some of its staunchest advocates predict a “dark ages” of software freedom (e.g., BradleyKuhn, Stefano Zacchiroli).

…

Since 2005 the FSF has published a list of high priority free software projects in order “to foster work on projects that are important for increasing the adoption and use of free software and free software operating systems.”

Undoubtedly there are thousands of free software projects that are high priority, each having potential to displace non-free programs for many users, substantially increasing the freedom of those users. But the potential value of a list of High Priority Free Software Projects maintained by the Free Software Foundation is its ability to bring attention to a relatively small number of projects of great strategic importance to the goal of freedom for all computer users.

[…]

Keep in mind that not every project of great strategic importance to the goal of freedom for all computer users will be a software development project. If you believe other forms of activism, internal or external (e.g., making free software communities safe for diverse participants, mandating use of free software in the public sector), are most crucial, please make the case and suggest such a project!

I hope the announcement text indicates the possibility of exploiting the review and list to encourage debate about how to achieve the FSF’s goal of software freedom for all over the next decades, and that the how might (must, in my view) go far beyond hacking of code (and secondarily, copyright). How can demand for software freedom be both increased and made more effective? Same for supply, inclusive of distribution and marketing?

Because it is undoubtedly out of scope for above activity, I’ll note here a project I consider necessary for FSF’s goal to become plausible: question software freedom.

…

The “dark ages” links above largely concern “the cloud”, the topic of the other FSF-related committee I’ve participated in, over 6 years ago, correctly implying that effort was not very influential. I hope to post an assessment and summary of my current take on the topic in the near future.

Last month the Free Software Foundation and Software Freedom Conservancy launched copyleft.org, “a collaborative project to create and disseminate useful information, tutorial material, and new policy ideas regarding all forms of copyleft licensing.” The main feature of the project now is a 157 page tutorial on the GPL which assembles material developed over the past 10 years and a new case study. I agreed to write a first draft of material covering CC-BY-SA, the copyleft license most widely used for non-software works. My quote in the announcement: “I’m glad to bring my knowledge about the Creative Commons copyleft licenses as a contribution to improve further this excellent tutorial text, and I hope that copyleft.org as a whole can more generally become a central location to collect interesting ideas about copyleft policy.”

I tend to offer apologia to copyleft detractors and criticism to copyleft advocates, and cheer whatever improvements to copyleft licenses can be mustered (I hope to eventually write a cheery post about the recent compatibility of CC-BY-SA and the Free Art License), but I’m far more interested in copyleft licenses as prototypes for non-copyright policy.

For now, below is that first draft. It mostly stands alone, but might be merged in pieces as the tutorial is restructured to integrate material about non-GPL and non-software copyleft licenses. Your patches and total rewrites welcome!

This tutorial gives a comprehensive explanation of the most popular free-as-in-freedom copyright licenses for non-software works, the Creative Commons Attribution-ShareAlike (“CC-BY-SA”, or sometimes just “BY-SA”) – with an emphasis on the current version 4.0 (“CC-BY-SA-4.0”).

Upon completion of this part of the tutorial, readers can expect to have learned the following:

The history and role of copyleft licenses for non-software works.

The differences between the GPL and CC-BY-SA, especially with respect to copyleft policy.

FIXME this list should be more aggressive, but material is not yet present

WARNING: As of November 2014 this part is brand new, and badly needs review, referencing, expansion, error correction, and more.

Freedom as in Free Culture, Documentation, Education…

Critiques of copyright’s role in concentrating power over and making culture inaccessible have existed throughout the history of copyright. Few contemporary arguments about “copyright in the digital age” have not already been made in the 1800s or before. Though one can find the occasional ad hoc “anti-copyright”, “no rights reserved”, or pro-sharing statement accompanying a publication, use of formalized public licenses for non-software works seems to have begun only after the birth of the free software movement and of widespread internet access among elite populations.

Although they have much older antecedents, contemporary movements to create, share, and develop policy encouraging “cultural commons”, “open educational resources”, “open access scientific publication” and more, have all come of age in the last 10-15 years – after the huge impact of free software was unmistakable. Additionally, these movements have tended to emphasize access, with permissions corresponding to the four freedoms of free software and the use of fully free public licenses as good but optional.

It’s hard not to observe that it seems the free software movement arose more or less shortly after as it became desirable (due to changes in the computing industry and software becoming unambiguously subject to copyright in the United States by 1983), but non-software movements for free-as-in-freedom knowledge only arose after they became more or less inevitable, and only begrudgingly at that. Had a free culture “constructed commons” movement been successful prior to the birth of free software, the benefits to computing would have been great – consider the burdens of privileged access to proprietary culture for proprietary software through DRM and other mechanisms, toll access to computer science literature, and development of legal mechanisms and policy through pioneering trial-and-error.

Alas, counterfactual optimism does not change the present – but might embolden our visions of what freedom can be obtained and defended going forward. Copyleft policy will surely continue to be an important and controversial factor, so it’s worth exploring the current version of the most popular copyleft license intended for use with non-software works, Creative Commons Attribution-ShareAlike 4.0 International (CC-BY-SA-4.0), the focus of this tutorial.

Free Definitions

When used to filter licenses, the Free Software Definition and Open Source Definition have nearly identical results. For licenses primarily intended for non-software works, the Definition of Free Cultural Works and Open Definition similarly have identical results, both with each other and with the software definitions which they imitate. All copyleft licenses for non-software works must be “free” and “open” per these definitions.

There are various other definitions of “open access”, “open content”, and “open educational resources” which are more subject to interpretation or do not firmly require the equivalent of all four freedoms of the free software definition. While these definitions are not pertinent to circumscribing the concept of copyleft – which is about enforcing all four freedoms, for everyone. But copyleft licenses for non-software works are usually considered “open” per these other definitions, if they are considered at all.

The open access to scientific literature movement, for example, seems to have settled into advocacy for non-copyleft free licenses (CC-BY) on one hand, and acceptance of highly restrictive licenses or access without other permissions on the other. This creates practical problems: for example, nearly all scientific literature either may not be incorporated into Wikipedia (which uses CC-BY-SA) or may not incorporate material developed on Wikipedia – both of which do happen, when the licenses allow it. This tutorial is not the place to propose solutions, but let this problem be a motivator for encouraging more widespread understanding of copyleft policy.

Non-software Copylefts

Copyleft is a compelling concept, so unsurprisingly there have been many attempts to apply it to non-software works – starting with use of GPLv2 for documentation, then occasionally for other texts, and art in various media. Although the GPL was and is perfectly usable for any work subject to copyright, several factors were probably important in preventing it from being the dominant copyleft outside of software:

the GPL is clearly intended first as a software license, thus requiring some perspective to think of applying to non-software works;

the FSF’s concern is software, and the organization has not strongly advocated for using the GPL for non-software works;

further due to the (now previous) importance of its hardcopy publishing business and desire to retain the ability to take legal action against people who might modify its statements of opinion, FSF even developed a non-GPL copyleft license specifically for documentation, the Free Documentation License (FDL; which ceases to be free and thus is not a copyleft if its “invariant sections” and similar features are used);

a large cultural gap and lack of population overlap between free software and other movements has limited knowledge transfer and abetted reinvention and relearning;

the question of what constitutes source (“preferred form of the work for making modifications”) for many non-software works.

As a result, several copyleft licenses for non-software works were developed, even prior to the existence of Creative Commons. These include the aforementioned FDL (1998), Design Science License (1999), Open Publication License (1999; like the FDL it has non-free options), Free Art License (2000), Open Game License (2000; non-free options), EFF Open Audio License (2001), LinuxTag Green OpenMusic License (2001; non-free options) and the QING Public License (2002). Additionally several copyleft licenses intended for hardware designs were proposed starting in the late 1990s if not sooner (the GPL was then and is now also commonly used for hardware designs, as is now CC-BY-SA).1

At the end of 2002 Creative Commons launched with 11 1.0 licenses and a public domain dedication. The 11 licenses consisted of every non-mutually exclusive combination of at least one of the Attribution (BY), NoDerivatives (ND), NonCommercial (NC), and ShareAlike (SA) conditions (ND and SA are mutually exclusive; NC and ND are non-free). Three of those licenses were free (as was the public domain dedication), two of them copyleft: CC-SA-1.0 and CC-BY-SA-1.0.

Creative Commons licenses with the BY condition were more popular, so the 5 without (including CC-SA) were not included in version 2.0 of the licenses. Although CC-SA had some advocates, all who felt very strongly in favor of free-as-in-freedom, its incompatibility with CC-BY-SA (meaning had CC-SA been widely used, the copyleft pool of works would have been further fragmented) and general feeling that Creative Commons had created too many licenses led copyleft advocates who hoped to leverage Creative Commons to focus on CC-BY-SA.

Creative Commons began with a small amount of funding and notoriety, but its predecessors had almost none (FSF and EFF had both, but their entries were not major focuses of those organizations), so Creative Commons licenses (copyleft and non-copyleft, free and non-free) quickly came to dominate the non-software public licensing space. The author of the Open Publication License came to recommend using Creative Commons licenses, and the EFF declared version 2.0 of the Open Audio License compatible with CC-BY-SA and suggested using the latter. Still, at least one copyleft license for “creative” works was released after Creative Commons launched: the Against DRM License (2006), though it did not achieve wide adoption. Finally a font-specific copyleft license (SIL Open Font License) was introduced in 2005 (again the GPL, with a “font exception”, was and is now also used for fonts).

Although CC-BY-SA was used for licensing “databases” almost from its launch, and still is, copyleft licenses specifically intended to be used for databases were proposed starting from the mid-2000s. The most prominent of those is the Open Database License (ODbL; 2009). As we can see public software licenses following the subjection of software to copyright, interest in public licenses for databases followed the EU database directive mandating “sui generis database rights”, which began to be implemented in member state law starting from 1998. How CC-BY-SA versions address databases is covered below.

Aside on share-alike non-free therefore non-copylefts

Many licenses intended for use with non-software works include the “share-alike” aspect of copyleft: if adaptations are distributed, to comply with the license they must be offered under the same terms. But some (excluding those discussed above) do not grant users the equivalent of all four software freedoms. Such licenses aren’t true copylefts, as they retain a prominent exclusive property right aspect for purposes other than enforcing all four freedoms for everyone. What these licenses create are “semicommons” or mixed private property/commons regimes, as opposed to the commons created by all free licenses, and protected by copyleft licenses. One reason non-free public licenses might be common outside software, but rare for software, is that software more obviously requires ongoing maintenance.2 Without control concentrated through copyright assignment or highly asymmetric contributor license agreements, multi-contributor maintenance quickly creates an “anticommons” – e.g., nobody has adequate rights to use commercially.

These non-free share-alike licenses often aggravate freedom and copyleft advocates as the licenses sound attractive, but typically are confusing, probably do not help and perhaps stymie the cause of freedom. There is an argument that non-free licenses offer conservative artists, publishers, and others the opportunity to take baby steps, and perhaps support better policy when they realize total control is not optimal, or to eventually migrate to free licenses. Unfortunately no rigorous analysis of any of these conjectures exists. The best that can be done might be to promote education about and effective use of free copyleft licenses (as this tutorial aims to do) such that conjectures about the impact of non-free licenses become about as interesting as the precise terms of proprietary software EULAs – demand freedom instead.

In any case, some of these non-free share-alike licenses (also watch out for aforementioned copyleft licenses with non-free and thus non-copyleft options) include: Open Content License (1998), Free Music Public License (2001), LinuxTag Yellow, Red, and Rainbow OpenMusic Licenses (2001), Open Source Music License (2002), Creative Commons NonCommercial-ShareAlike and Attribution-NonCommercial-ShareAlike Licenses (2002), Common Good Public License (2003), and Peer Production License (2013). CC-BY-NC-SA is by far the most widespread of these, and has been versioned with the other Creative Commons licenses, through the current version 4.0 (2013).

Creative Commons Attribution-ShareAlike

The remainder of this tutorial exclusively concerns the most widespread copyleft license intended for non-software works, Creative Commons Attribution-ShareAlike(CC-BY-SA). But, there are actually many CC-BY-SA licenses – 5 versions (6 if you count version 2.1, a bugfix for a few jurisdiction “porting” mistakes), ports to 60 jurisdictions – 96 distinct CC-BY-SA licenses in total. After describing CC-BY-SA and how it differs from the GPL at a high level, we’ll have an overview of the various CC-BY-SA licenses, then a section-by-section walkthrough of the most current and most clear of them – CC-BY-SA-4.0.

CC-BY-SA allows anyone to share and adapt licensed material, for any purpose, subject to providing credit and releasing adaptations under the same terms. The preceding sentence is a severe abridgement of the “human readable” license summary or “deed” provided by Creative Commons at the canonical URL for one of the CC-BY-SA licenses – the actual license or “legalcode” is a click away. But this abridgement, and the longer the summary provided by Creative Commons are accurate in that they convey CC-BY-SA is a free, copyleft license.

GPL and CC-BY-SA differences

There are several differences between the GPL and CC-BY-SA that are particularly pertinent to their analysis as copyleft licenses.

The most obvious such difference is that CC-BY-SA does not require offering works in source form, that is their preferred form for making modifications. Thus CC-BY-SA makes a huge tradeoff relative to the GPL – CC-BY-SA dispenses with a whole class of compliance questions which are more ambiguous for some creative works than they are for most software – but in so doing it can be seen as a much weaker copyleft.

Copyleft is sometimes described as a “hack” or “judo move” on copyright, but the GPL makes two moves, though it can be hard to notice they are conceptually different moves, without the contrast provided by a license like CC-BY-SA, which only substantially makes one move. The first move is to neutralize copyright restrictions – adaptations, like the originally licensed work, will effectively not be private property (of course they are subject to copyright, but nobody can exercise that copyright to prevent others’ use). If copyright is a privatized regulatory system (it is), the first move is deregulatory. The second move is regulatory – the GPL requires offer of source form, a requirement that would not hold if copyright disappeared, absent a different regulatory regime which mandated source revelation (one can imagine such a regime on either “pragmatic” grounds, e.g., in the interest of consumer protection, or on the grounds of enforcing software freedom as a universal human right).

FIXME analysis of differences in copyleft scope (eg interplay of derivative works, modified copies, collections, aggregations, containers) would be good here but might be difficult to avoid novel research

CC-BY-SA makes the first move3 but adds the second in a limited fashion. It does not require offer of preferred form for modification nor any variation thereof (e.g., the FDL requires access to a “transparent copy”). CC-BY-SA does prohibit distribution with “effective technical measures” (i.e., digital restrictions management or DRM) if doing so limits the freedoms granted by the license. We can see that this is regulatory because absent copyright and any regime specifically limiting DRM, such distribution would be perfectly legal. Note the GPL does not prohibit distribution with DRM, although its source requirement makes DRM superfluous, and somewhat analogously, of course GPLv3 carefully regulates distribution of GPL’d software with locked-down devices – to put it simply, it requires keys rather than prohibiting locks. Occasionally a freedom advocate will question whether CC-BY-SA’s DRM prohibition makes CC-BY-SA a non-free license. Few if any questioners come down on the side of CC-BY-SA being non-free, perhaps for two reasons: first, overwhelming dislike of DRM, thus granting the possibility that CC-BY-SA’s approach could be appropriate for a license largely used for cultural works; second, the DRM prohibition in CC-BY-SA (and all CC licenses) seems to be mainly expressive – there are no known enforcements, despite the ubiquity of DRM in games, apps, and media which utilize assets under various CC licenses.

Another obvious difference between the GPL and CC-BY-SA is that the former is primarily intended to be used for software, and the latter for cultural works (and, with version 4.0, databases). Although those are the overwhelming majority of uses of each license, there are areas in which both are used, e.g., for hardware design and interactive cultural works, where there is not a dominant copyleft practice or the line between software and non-software is not absolutely clear.

This brings us to the third obvious difference, and provides a reason to mitigate it: the GPL and CC-BY-SA are not compatible, and have slightly different compatibility mechanisms. One cannot mix GPL and CC-BY-SA works in a way that creates a derivative work and comply with either of them. This could change – CC-BY-SA-4.0 introduced4 the possibility of Creative Commons declaring CC-BY-SA-4.0 one-way (as a donor) compatible with another copyleft license – the GPL is obvious candidate for such compatibility. Discussion is expected to begin in late 2014, with a decision sometime in 2015. If this one-way compatibility were to be enacted, one could create an adaptation of a CC-BY-SA work and release the adaptation under the GPL, but not vice-versa – which makes sense given that the GPL is the stronger copyleft.

The GPL has no externally declared compatibility with other licenses mechanism (and note no action from the FSF would be required for CC-BY-SA-4.0 to be made one-way compatible with the GPL). The GPL’s compatibility mechanism for later versions of itself differs from CC-BY-SA’s in two ways: the GPL’s is optional, and allows for use of the licensed work and adaptations under later versions; CC-BY-SA’s is non-optional, but only allows for adaptations under later versions.

Fourth, using slightly different language, the GPL and CC-BY-SA’s coverage of copyright and similar restrictions should be identical for all intents and purposes (GPL explicitly notes “semiconductor mask rights” and CC-BY-SA-4.0 “database rights” but neither excludes any copyright-like restrictions). But on patents, the licenses are rather different. CC-BY-SA-4.0 explicitly does not grant any patent license, while previous versions were silent. GPLv3 has an explicit patent license, while GPLv2’s patent license is implied (see [gpl-implied-patent-grant] and [GPLv3-drm] for details). This difference ought give serious pause to anyone considering use of CC-BY-SA for works potentially subject to patents, especially any potential licensee if CC-BY-SA licensor holds such patents. Fortunately Creative Commons has always strongly advised against using any of its licenses for software, and that advice is usually heeded; but in the space of hardware designs Creative Commons has been silent, and unfortunately from a copyleft (i.e., use mechanisms at disposal to enforce user freedom) perspective, CC-BY-SA is commonly used (all the more reason to enable one-way compatibility, allowing such projects to migrate to the stronger copyleft).

The final obvious difference pertinent to copyleft policy between the GPL and CC-BY-SA is purpose. The GPL’s preamble makes it clear its goal is to guarantee software freedom for all users, and even without the preamble, it is clear that this is the Free Software Foundation’s driving goal. CC-BY-SA (and other CC licenses) state no purpose, and (depending on version) are preceded with a disclaimer and neutral “considerations for” licensors and licensees to think about (the CC0 public domain dedication is somewhat of an exception; it does have a statement of purpose, but even that has more of a feel of expressing yes-I-really-mean-to-do-this than a social mission). Creative Commons has always included elements of merely offering copyright holders additional choices and of purposefully creating a commons. While CC-BY-SA (and initially CC-SA) were just among the 11 non-mutually exclusive combinations of “BY”, “NC”, “ND”, and “SA”, freedom advocates quickly adopted CC-BY-SA as “the” copyleft for non-software works (surpassing previously existing non-software copylefts mentioned above). Creative Commons has at times recognized the special role of CC-BY-SA among its licenses, e.g., in a statement of intent regarding the license made in order to assure Wikimedians considering changing their default license from the FDL to CC-BY-SA that the latter, including its steward, was acceptably aligned with the Wikimedia movement (itself probably more directly aligned with software freedom than any other major non-software commons).

There are numerous other differences between the GPL and CC-BY-SA that are not particularly interesting for copyleft policy, such as the exact form of attribution and notice, and how license translations are handled. Many of these have changed over the course of CC-BY-SA versioning.

CC-BY-SA versions

FIXME section ought explain jurisdiction ports

This section gives a brief overview of changes across the main versions (1.0, 2.0, 2.5, 3.0, and 4.0) of CC-BY-SA, again focused on changes pertinent to copyleft policy. Creative Commons maintains a page detailing all significant changes across versions of all of its CC-BY* licenses, in many cases linking to detailed discussion of individual changes.

As of late 2014, versions 2.0 (the one called “Generic”; there are also 18 jurisdiction ports) and 3.0 (called “Unported”; there are also 39 ports) are by far the most widely used. 2.0 solely because it is the only version that the proprietary web image publishing service Flickr has ever supported. It hosts 27 million CC-BY-SA-2.0 photos 5 and remains the go-to general source for free images (though it may eventually be supplanted by Wikimedia Commons, some new proprietary service, or a federation of free image sharing sites, perhaps powered by GNU MediaGlobin). 3.0 both because it was the current version far longer (2007-2013) than any other and because it has been adopted as the default license for most Wikimedia projects.

However apart from the brief notes on each version, we will focus on 4.0 for a section-by-section walkthrough in the next section, as 4.0 is improved in several ways, including understandability, and should eventually become the most widespread version, both because 4.0 is intended to remain the current version for the indefinite and long future, and it would be reasonable to predict that Wikimedia projects will make CC-BY-SA-4.0 their default license in 2015 or 2016.

FIXME subsections might not be the right strcuture or formatting here

1.0 (2002-12-16)

CC-BY-SA-1.0 set the expectation for future versions. But the most notable copyleft policy feature (apart from the high level differences with GPLv2, such as not requiring source) was no measure for compatibility with future versions (nor with the CC-SA-1.0, also a copyleft license, nor with pre-existing copyleft licenses such as GPL, FDL, FAL, and others, nor with CC jurisdiction ports, of which there were 3 for 1.0).

2.0 (2004-05-25)

CC-BY-SA-2.0 made itself compatible with future versions and CC jurisdiction ports of the same version. Creative Commons did not version CC-SA, leaving CC-BY-SA-2.0 as “the” CC copyleft license. CC-BY-SA-2.0 also adds the only clarification of what constitutes a derivative work, making “synchronization of the Work in timed-relation with a moving image” subject to copyleft.

2.5 (2005-06-09)

CC-BY-SA-2.5 makes only one change, to allow licensor to designate another party to receive attribution. This does not seem interesting for copyleft policy, but the context of the change is: it was promoted by the desire to make attribution of mass collaborations easy (and on the other end of the spectrum, to make it possible to clearly require giving attribution to a publisher, e.g., of a journal). There was a brief experiment in branding CC-BY-SA-2.5 as the “CC-wiki” license. This was an early step toward Wikimedia adopting CC-BY-SA-3.0, four years later.

3.0 (2007-02-23)

CC-BY-SA-3.0 introduced a mechanism for externally declaring bilateral compatibility with other licenses. This mechanism to date has not been used for CC-BY-SA-3.0, in part because another way was found for Wikimedia projects to change their default license from FDL to CC-BY-SA: the Free Software Foundation released FDL 1.3, which gave a time-bound permission for mass collaboration sites to migrate to CC-BY-SA. While not particularly pertinent to copyleft policy, it’s worth noting for anyone wishing to study old versions in depth that 3.0 is the first version to substantially alter the text of most of the license, motivated largely by making the text use less U.S.-centric legal language. The 3.0 text is also considerably longer than previous versions.

4.0 (2013-11-25)

CC-BY-SA-4.0 added to 3.0’s external compatibility declaration mechanism by allowing one-way compatibility. After release of CC-BY-SA-4.0 bilateral compatibility was reached with FAL-1.3. As previously mentioned, one-way compatibility with GPLv3 will soon be discussed.

4.0 also made a subtle change in that an adaptation may be considered to be licensed solely under the adapter’s license (currently CC-BY-SA-4.0 or FAL-1.3, in the future potentially GPLv3 or or a hypothetical CC-BY-SA-5.0). In previous versions licenses were deemed to “stack” – if a work under CC-BY-SA-2.0 were adapted and released under CC-BY-SA-3.0, users of the adaptation would need to comply with both licenses. In practice this is an academic distinction, as compliance with any compatible license would tend to mean compliance with the original license. But for a licensee using a large number of works that wished to be extremely rigorous, this would be a large burden, for it would mean understanding every license (including those of jurisdiction ports not in English) in detail.

The new version is also an even more complete rewrite of 3.0 than 3.0 was of previous versions, completing the “internationalization” of the license, and actually decreasing in length and increasing in readability.

Additionally, 4.0 consistently treats database (licensing them like other copyright-like rights) and moral rights (waiving them to the extent necessary to exercise granted freedoms) – in previous versions some jurisdiction ports treated these differently – and tentatively eliminates the need for jurisdiction ports. Official linguistic translations are underway (Finnish is the first completed) and no legal ports are planned for.

4.0 is the first version to explicitly exclude a patent (and less problematically, trademark) license. It also adds two features akin to those found in GPLv3: waiver of any right licensor may have to enforce anti-circumvention if DRM is applied to the work, and reinstatement of rights after termination if non-compliance corrected within 30 days.

Finally, 4.0 streamlines the attribution requirement, possibly of some advantage to massive long-term collaborations which historically have found copyleft licenses a good fit.

The following walk-through will simply call out portions of each section one may wish to study especially closely due to their pertinence to copyleft policy issues mentioned above.

FIXME subsections might not be the right structure or formatting here

1 – Definitions

The first three definitions – “Adapted Material”, “Adapter’s License”, and “BY-SA Compatible License” are crucial to understanding copyleft scope and compatibility.

2 – Scope

The license grant is what makes all four freedoms available to licensees. This section is also where waiver of DRM anti-circumvention is to be found, also patent and trademark exclusions.

3 – License Conditions

This section contains the details of the attribution and share-alike requirements; the latter read closely with aforementioned definitions describe the copyleft aspect of CC-BY-SA-4.0.

4 – Sui Generis Database Rights

This section describes how the previous grant and condition sections apply in the case of a database subject to sui generis database rights. This is an opportunity to go down a rabbit-hole of trying to understand sui generis database rights. Generally, this is a pointless exercise. You can comply with the license in the same way you would if the work were subject only to copyright – and determining whether a database is subject to copyright and/or sui generis database rights is another pit of futility. You can license databases under CC-BY-SA-4.0 and use databases subject to the same license as if they were any other sort of work.

5 – Disclaimer of Warranties and Limitation of Liability

Unsurprisingly, this section does its best to serve as an “absolute disclaimer and waiver of all liability.”

6 – Term and Termination

This section is similar to GPLv3, but without special provision for cases in which the licensor wishes to terminate even cured violations.

7 – Other Terms and Conditions

Though it uses different language, like the GPL, CC-BY-SA-4.0 does not allow additional restrictions not contained in the license. Unlike the GPL, CC-BY-SA-4.0 does not have an explicit additional permissions framework, although effectively a licensor can offer any other terms if they are the sole copyright holder (the license is non-exclusive), including the sorts of permissions that would be structured as additional permissions with the GPL. Creative Commons has sometimes called offering of separate terms (whether additional permissions or “proprietary relicensing”) the confusing name “CC+”; however where this is encountered at all it is usually in conjunction with one of the non-free CC licenses. Perhaps CC-BY-SA is not a strong enough copyleft to sometimes require additional permissions, or be used to gain commercially valuable asymmetric rights, in contrast with the GPL.

8 – Interpretation

Nothing surprising here. Note that CC-BY-SA does not “reduce, limit, restrict, or impose conditions on any use of the Licensed Material that could lawfully be made without permission under this Public License.” This is a point that Creative Commons has always been eager to make about all of its licenses. GPLv3 also “acknowledges your rights of fair use or other equivalent”. This may be a wise strategy, but should not be viewed as mandatory for any copyleft license – indeed, the ODbL attempts (somewhat self-contradictorily; it also acknowledges fair use or other rights to use) make its conditions apply even for works potentially subject to neither copyright nor sui generis database rights.

Enforcement

Only two of those cases concern enforcing the terms of a CC-BY-SA license (Gerlach v. DVU in Germany, and No. 71036 N. v. Newspaper in a private Rabbinical tribunal) each hinged on attribution, not share-alike.

Further research could uncover out of compliance uses being brought into compliance without lawsuit, however no such research, nor any hub for conducting such compliance work, is known. Editors of Wikimedia Commons document some external uses of Commons-hosted media, including whether user are compliant with the relevant license for the media (often CC-BY-SA), resulting in a category listing non-compliant uses (which seem to almost exclusively concern attribution).

Compliance Resources

FIXME this section is just a stub; ideally there would also be an additional section or chapter on CC-BY-SA compliance

English Wikipedia’s and Wikimedia Commons’ pages on using material outside of Wikimedia projects provide valuable information, as the majority of material on those sites is CC-BY-SA licensed, and their practices are high-profile.

FIXME there is no section on business use of CC-BY-SA; there probably ought to be as there is one for GPL, though there’d be much less to put.

Co-founders David Thomas and Aaron Wolf (the Woz and Jobs of the project) have been working on Snowdrift.coop for at least 2 years (project announcement thread). I’ve been following their progress since, and occasionally offered advice (including on the linked thread).

I’ve been eager to see more nuanced crowdfunding arrangements tried since before relatively simple one-off threshold systems became popular — probably in part due to their simplicity. Snowdrift’s mechanism is both interesting, and has been criticized (see linked thread) for its complexity. It’ll be fun to see it tried out, and simplified, or even made more complex, as warranted.

If Snowdrift were to become a dominant platform for funding free/libre/open projects, scaling (contributors increase their contributions as more people contribute) could help create clear winners among the proliferation of such projects.

Today’s crowdfunding platforms were influenced (by now, mostly indirectly) by Kelsey and Schneier’s “Street Performer Protocol” paper, which set out to devise an alternative funding system for public domain works. But most crowdfunded works are not in the commons, indicating an need for better coordination of street patrons.

Snowdrift has additional interesting features, including organization as a cooperative, an honor code that goes beyond free/libre/open requirements, and being developed in the programming language Haskell. I’ve barely mentioned these things in the past, but they’re all interesting — alternative institutional arrangements, post-software-freedom, safety. The Snowdrift wiki has pages covering many of these topics and more in depth. They’ve also generally chosen to develop an integrated platform rather than to use existing software (e.g., for wiki, discussion, issues, mailing list) except for revision control hosting. Clearly Snowdrift is not trying to innovate in only one dimension.

Now, Snowdrift is doing a “traditional” one-off crowdfunding drive in order to get itself to production, such that the project and other free/libre/open projects can be funded on an ongoing fashion using the Snowdrift platform and mechanism.

Donate, share, and critique if you’re a fan of interesting mechanisms and freedom.

Retrospective on 10 years of Ubuntu (LWN discussion). I ran Ubuntu on my main computer from 2005 to 2011. I was happy to see Ubuntu become a “juggernaut” and I think like many hoped for it to become mainstream, largely indicated by major vendor preinstallation. The high point for me, which I seem to have never blogged about, was in 2007 purchasing a very well priced Dell 1420n with Ubuntu preinstalled.

But the juggernaut stalled at the top of the desktop GNU/Linux distribution heap, which isn’t very high. Although people have had various complaints about Ubuntu and Canonical Ltd., as I’ve written before my overriding disappointment is that they haven’t been much more successful. There are a couple tiny vendors that focus exclusively or primarily on shipping Ubuntu-preinstalled consumer hardware, and Dell or another major vendor occasionally offers something — Dell has had a developer edition Ubuntu preinstall for a couple years, usually substantially out of date, as the current offering is now.

Canonical seems to have followed Red Hat and others in largely becoming an enterprise/cloud servicing company, though apparently they’re still working on an Ubuntu flavor for mobile devices (and I haven’t followed, but I imagine that Red Hat still does some valuable engineering for the desktop). I wish both companies ever more success in these ventures — more huge companies doing only or almost only open source are badly needed, even imperfect ones.

For Ubuntu fans, this seems like a fine time to ask why it hasn’t been even more successful. Why hasn’t it achieved consistent and competitive mainstream vendor distribution? How much, if any blame can be laid at Canonical’s stumbles with respect to free/open source software? It seems to me that a number of Canonical products would have been much more likely to be dominante had they been open source from the beginning (Launchpad, Ubuntu One) or not required a Contributor License Agreement (bzr, Upstart, Mir), would not have alienated a portion of the free/open source software community, and that the world would overall be a better place had most of those products won — the categories of the first two remain dominated by proprietary services, and the latter three might have gained widespread adoption sooner than the things that eventually did or will probably win (git, systemd, wayland). But taking a step back, it’s really hard to see how these stumbles (that’s again from an outsider free/open source perspective; maybe they are still seen as having been the right moves at the time inside Canonical; I just don’t know) might have contributed in a major way to lack of mainstream success. Had the stumbles been avoided, perhaps some engineering resources would have been better allocated or increased, but unless reallocated with perfect hindsight as to what the technical obstacles to mainstream adoption were — an impossibility — I doubt they made much of a difference. What about alientation of a portion of the free/open source community? Conceivably had they (we) been more enthusiastic, more consumer lobbying/demand for Ubuntu preinstalls would have occurred, and tipped a balance — but that seems like wishful thinking, requiring a level of perfect organizing of GNU/Linux fan consumer demand that nobody has achieved. I’d love to believe that had Canonical stuck closer to a pure free/open source software path, it’d have achieved greater mainstream success, but I just don’t see much of a causal link. What are the more likely causes? I’d love to read an informed analysis.

For Ubuntu detractors, this seems like a fine time to ask why Ubuntu has been a juggernaut relative to your preferred GNU/Linux distribution. If you’re angry at Canonical, I suggest your anger is misdirected — you should be angry instead that your preferred distribution hasn’t managed to do marketing and distribution as well as it needed to, on its own terms — and figure out why that is. Better yet, form and execute on a plan to achieve the mainstream success that Ubuntu hasn’t. Otherwise in all likelihood it’s an Android and ChromeOS (and huge Windows legacy, with some Apple stuff in between) world for a long time to come. I’d love to read a feasible plan!

People watch more paid, legal content than ever, but they also continue to download huge amounts of illegal content. “Piracy is putting pressure on antiquated business models, which isn’t necessarily a bad thing,” said Brett Danaher, an economics professor at Wellesley College who studies Internet piracy. “But the prevalence of piracy shows that people are growing up in a culture of free, and that is not good for the future of entertainment, either.”

That we should be concerned for the future of entertainment, at all, is itself bizarre. Freedom and equality should absolutely trump incentivizing a surfeit of entertainment. If we must choose between spectacle and communications, spectacle should be destroyed. We do not need to choose. We can destroy the censorship regime, but entertainment, including for better or worse some of the spectacle variety, will continue to exist and be produced in vastly greater quantities and quality than it is feasible for anyone to even begin to fully appreciate in a lifetime. If the spectacle portion does not include projects with budgets of hundreds of millions of dollars, that is OK — we will love what culture does get produced, as that love and cultural relevance is largely based on being immersed in the culture that exists — we love the culture we’re in. If that culture is less dominated by U.S.-based high investment productions, so much the better for the U.S. and the world.

Another policy significant quote from the article:

Peter Eckersley, technology projects director at the Electronic Frontier Foundation […] said the law should shift its focus to making sure that copyright holders are paid for their work, rather than trying to stymie how people gain access to it. […] He suggested a legal framework to retire the “exclusive rights” aspect of copyright law that requires permission to publish — and that allows copyright holders to seek exorbitant damages from infringers — and move toward a system that requires sites and people who make money from another’s work to share any profits. Solutions like these, Mr. Eckersley says, would create different priorities that go beyond chasing small-time pirates like Ms. Beshara and her colleagues.

No, copyright holders should not be paid. Any payment by virtue of holding copyright only makes the censorship regime self-perpetuating. Funding of entertainment should be completely decoupled from the censorship regime of copyright. I understand the appeal of paid speech over permissioned speech (of course a tax is usually better than a prohibition, and that applies to privatized regimes as well), but neither is free speech. The paid speech approach would indeed create priorities that go beyond chasing small-time pirates (note Beshara earned $210k over 3 years; note also existing paid speech regimes which involve monitoring and shakedown of small-time restaurants) — it would invite further pervasive and destructive surveillance of communications in the interest of ensuring copyright holders get paid. It is appalling that EFF is still willing to invite sacrifice of everything they fight for at the alter of paying copyright holders. I don’t blame the EFF specifically; this just shows how deeply intellectual parasitism has burrowed in general. Intellectual parasites (which includes most reformers, including me often) need to fully shift to being commons policy advocates (and scholars).

Regarding people and projects like Hana Beshara and NinjaVideo, I’m ambivalent. Performing unpaid marketing and price discrimination services for the censorship industry is distasteful and harmful. But sharing culture (putting the regime aside) is tasteful and helpful. There is too little known about informal circulations and their effects, this lack of knowledge itself a collateral damage of the regime (compare being able to study cultural flows and surveillance required for paid speech; they are of different orders) and far, far, far too little direct competition for the regime.